S. Peter vs M/s. Tata Tea Limited

Justice Thomas P. Joseph

The defendant in O.S.No. 276 of 2000 of the Munsiff''s Court, Devikulam is aggrieved by the dismissal of A.S.No. 105 of 2010 of the District Court, Thodupuzha as barred by limitation and has preferred this second appeal. Respondent/plaintiff sued the appellant for declaration of its title and recovery of possession of the suit property claiming that the appellant is an unauthorized occupant of the suit property. Appellant resisted the suit on various grounds. The case came up for trial in the list and a decree, in the absence of the appellant was passed on 15.01.2003. Challenging that judgment and decree, the appellant filed A.S.No. 105 of 2010 with I.A.No. 743 of 2010 to condone the delay of 2845 days in filing the appeal. That application was resisted by the respondent. The learned District Judge, by order dated 07.06.2011 held that the delay is not properly and sufficiently explained and dismissed I.A.No. 743 of 2010. Consequently, the appeal was dismissed as time barred.

The learned counsel for the appellant contends that challenging the dismissal of appellant from employment of the respondent, proceeding is pending in the Industrial Tribunal, Idukki as I.D.No. 476 of 2010. It is contended that under Rule 63 of the Kerala Plantations Labour Rules, 1959 appellant is entitled to remain in occupation of the building in the suit property until termination of the proceeding before the Industrial Tribunal. It is also submitted by the learned counsel that sufficient cause was shown for the delay and the learned District Judge was not right in holding that no sufficient cause is shown.

According to the appellant, respondent had filed another suit as O.S.No. 178 of 2001 (while O.S.No. 276 of 2000 was pending) against the appellant seeking the very same relief''s. The records of that case and the present case were entrusted to the counsel in the trial court. O.S.No. 178 of 2001 was dismissed. The counsel for the appellant in the trial court told the appellant that he will inform the posting date of O.S.No. 276 of 2000. But, that did not happen. Appellant who is a labourer was under the impression that the counsel would intimate him about the posting of O.S.No. 276 of 2000. Hence the delay.

It is not disputed that in O.S.No. 276 of 2000, with the presence of the appellant, trial had commenced and the witnesses for the respondent were examined and its evidence was closed. By that time, the Presiding Judge of the trial court was transferred. The successor-in-office continued with the proceeding. At that time, the appellant and counsel remained absent. Hence the suit was decreed by judgment dated 15.01.2003. It is also brought out that seeking the very same relief respondent filed O.S.No. 178 of 2001. According to the respondent, that suit was filed mistakenly and was dismissed as withdrawn. That happened even prior to the trial (in the presence of the appellant) commenced in O.S. 276 of 2000.

The learned District Judge has pointed out that the same counsel who appeared for the appellant in the trial court applied for and obtained a copy of judgment and decree of the trial court on 17.06.2003 and hence the contention that appellant was unaware of the decree in O.S.No. 276 of 2000 cannot be accepted. A further fact which the learned District Judge noticed is that though the appellant claimed that he learnt about the decree in O.S.No. 276 of 2000 only when he received notice in the execution petition, appellant did not state when the notice on the execution petition was received by him.

The Supreme Court in State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Others, has held that when the delay involved is inordinate, stricter should be the approach of the courts. This Court in Abdul Khader Vs. Surburban Chit Funds (P) Ltd., has pointed out that litigants shall not be under the impression that the superior courts are there to correct every error, inadequacy or contumacious lethargy in the conduct of cases. Here the delay is of 2845 days. I stated that it was with the appellant also participating that the trial commenced and evidence was adduced. That was much prior to 15.01.2003. It is difficult to think that the appellant who was aware of commencement of trial of the case kept quite for about 2845 days without enquiring about that. If he has done so, it is simply contumacious negligence on his part. Having regard to these aspects the learned District Judge has found that the delay in filing the appeal is not explained.

Since I am only considering whether the learned District Judge was right in dismissing the application for condonation of delay, it is not necessary for me to go into the merit of the contentions the appellant has advanced. However, having regard to the difficulties of the appellant stated by the learned counsel I am inclined to grant two (2) months time to the appellant to vacate the suit property.

Resultantly the second appeal is dismissed with the following directions:

i. The appellant is granted two (2) months time from this day to vacate the suit property.

ii. By the expiry of the said period of two months, appellant shall vacate the suit property without putting forth any claim or objection on any account whatsoever.

iii. Appellant shall not, during the said period of two months or till he vacates the suit property whichever is earlier induct third parties into possession thereof.

iv. It is made clear that in case the above condition is violated, respondent can proceed with the execution notwithstanding the time granted hereby.

v. Execution proceeding if any in O.S.No. 276 of 2000 of the Munsiff''s Court, Devikulam to the extent it concerned delivery of possession of the suit property will stand in abeyance for the said period of two (2) months or till appellant violates the condition above stated or till he vacates the suit property, whichever is earlier.

All pending interlocutory applications will stand dismissed.